This chapter evaluates the “terrorism” exception to the Foreign Sovereign Immunities Act (FSIA). The Fourth Restatement of Foreign Relations Law of the United States sets out to “restate” the law of the United States and “relevant portions of international law,” not to critique U.S. law or settle debates about the content of international law. However, that task is complicated when the law of the United States triggers questions about unresolved international law issues. The “terrorism” exception to the FSIA illustrates this complexity. Congress, the executive branch, and the judiciary have employed the exception as a politically motivated weapon to target disfavored states, while excluding U.S. allies, politically powerful states, and the United States itself from the reach of the statute. The text of the Fourth Restatement merely restates the U.S. law governing the “terrorism” exception, without identifying international law concerns or analyzing the issues they raise. The chapter, by contrast, offers a critique of the “terrorism” exception, focusing on the statute as written, as amended to reach particular targets, and as applied in practice. A well-crafted statutory exception to sovereign immunity for state human rights violations would be a welcome addition to human rights accountability. The “terrorism” exception falls far short of that goal.
Should or Must?: Nature of the Obligation of States to Use Trade Instruments for the Advancement of Environmental, Labour, and Other Human Rights
